Citing newly received Army emails, lawyers for Brig. Gen. Jeffrey A. Sinclair on Sunday night renewed their claims of Army command interference in the general’s sexual assault prosecution and asked the military judge to reconsider his refusal to drop the charges.

In a motion submitted the night before Sinclair’s accuser, an Army captain, is scheduled to be cross-examined at Ft. Bragg, N.C., defense lawyers referred to an email by a senior Army legal officer expressing concerns that the accuser lied on the stand at a preliminary hearing in January.

For those who haven’t been following closely, the alleged lie is over whether the captain accessed an old cell phone that contained evidence of the affair before she gave it to prosecutors. She claimed she didn’t, but forensics indicate that she did. However, there’s also this cringe-worthy bit:

The motion cites an email from an Army legal advisor to Lt. Gen. Anderson. The email refers to a letter the accuser’s special victim’s advocate wrote to Anderson. The advocate wrote that accepting Sinclair’s plea “would have an adverse affect on my client and the Army’s fight against sexual assault.’’

The legal advisor, Lt. Col. Jerrett Dunlap, wrote Dec. 18 that he had just met with Lt. Gen. Anderson, who agreed that the Army could not accept the plea offer. “The letter made [it] an easy decision,’’ Dunlap wrote.

In other news, the Army Times has this story about why you shouldn’t dodge colors, and if you do dodge colors why you shouldn’t brag about it on social media.

“I have no greater responsibility than to ensure no Coast Guardsman ever has to experience the devastation of sexual assault at the hands of someone they thought was a shipmate,” he said. Papp also emphasized that if a victim believes their case is not being addressed, “they can email me. I’m in the global directory. It will be taken care of.”

Finally, reader “D” sent me this ABC News story about a former soldier facing a federal capital murder trial that is about to begin in Hawaii:

Talia Emoni Williams died in July 2005 after she was brought to a hospital unresponsive, vomiting and covered in bruises. A criminal complaint by federal investigators accuses her then-25-year-old father [Naeem Williams] of beating the child to discipline her for urinating on herself. Federal investigators wrote that military law enforcement agents found blood splatters in the walls of the family’s home at Wheeler Army Airfield from Talia being whipped with Williams’ belt.

Delilah Williams, Talia’s stepmother, was also charged with murder but pleaded guilty in a deal with prosecutors. She’s expected to be sentenced to 20 years in prison after she testifies against Williams at his trial, said her federal public defender, Alexander Silvert.

The Army agreed the case should be prosecuted in the civilian justice system so that the father and stepmother could appear in the same court.

32 Responses to “Military Justice News for Monday, March 10, 2014”

RE the victim advocate’s input to the CA about accepting a PTA, I will limit my cringing to how this entire case is unfolding in the public eye. No one, including Army leadership, looks good at this point. To paraphrase the SVC, this entire circus is having an adverse effect on the fight against sexual assault. The Army should take the initiative and re-open the PTA discussion while there’s still time to make some lemonade.

Advocaat: Don’t worry, they won’t. I believe Army leadership thinks it better to stick with a stupid decision til the end than look weak (or rational) and change course after they have drawn a line in the sand that they find they can’t hold. It has happened in too many cases in my experience. It is characteristic of the organization’s culture.

I don’t know whether BG Sinclair sexually assaulted the alleged victim. I wasn’t there. As a trial attorney, I acknowledge that the defense has a lot to work with in terms of painting her as a jilted lover.
But even if BG Sinclair is not convicted of sexual assault, I truly hope the panel crushes him for the offenses he did plead guilty to. I am so tired of “leaders” like BG Sinclair engaging in deliberate and pervasive misconduct that shames the Army and distracts from the Army’s core mission when they get caught. How on earth does a married Brigade Commander think it’s acceptable to start sexing up a Lieutenant in his own Brigade? I don’t care if she was a willing participant at some point. These are not things a leader should ever do. Period.
Soldiers aren’t stupid. It was an open secret that this was going on, and it would have had a toxic effect on the entire unit. Nor does it appear this was an aberration for BG Sinclair. He’s admitted to sexual dalliances with other women as well, some of them apparently junior to him.
Time and time again, BG Sinclair abused his rank and position to further his sexual conquests. Long after this trial sideshow is gone from the public eye, the Army will be paying the price for BG Sinclair’s stupidity.
The panel owes it to those Soldiers and officers who do play by the rules to destroy this man for the harm he has done to the Army and its values.

Make an example out of this grotesque officer. Max him out with a dismissal and 15 years confinement.

Judge Pohl is pondering the motion to reconsider the Defense’s dismissal motion here.

In the surprise, surprise department, Airman 1st Class Brandon Wright who was accused by a female NCO of “pulling her on top of him” and raping her at her place while another Airman was in the other room is going to face a court-martial, after his second “unbiased” Article 32.

“We object to this hearing generally,” Angiollo said. “We’ve already been through an Article 32. We thought that was conducted properly.”
The investigating officer, Lt. Col. Shaun Speranza, said that despite the environment surrounding the case, there was no pressure on him to send it to court-martial.
“I can assure you, Airman Wright, defense counsel, trial counsel — there has been no attempt to influence my impartiality.”

I doubt that brought any comfort to Wright, particularly if he is following any of the Sinclair court martial.

“The motion cites an email from an Army legal advisor to Lt. Gen. Anderson. The email refers to a letter the accuser’s special victim’s advocate wrote to Anderson. The advocate wrote that accepting Sinclair’s plea “would have an adverse affect on my client and the Army’s fight against sexual assault.’’ Personally, I don’t see much of a UCI issue with the alleged victim giving input into the decision whether to accept a PTA. My only concern is uniformity, servicemember gets stabbed/assaulted by another servicemember and punctures a lung. Is this alleged victim being provided the same opportunities and input as a alleged victim of sexual assault? If not (which I believe to be the case), why?

Really? The only way I would have the same feelings is if Sinclair was the separation or convening authority on a number of cases involving the same misconduct. I would want to see the dismissal, then. I don’t know if, as a taxpayer, I would want the Government to continue to pay for his housing for 15 years, though. We taxpayers need all the help we can get…..

But, I am going to assume that he is not a hypocrite, so I will share my thoughts. I like to read the comments sections of the various online news articles about US v. Sinclair to see what people say, and there are so many comments that say, in effect, “If it were a lower enlisted Soldier, then he would get a dishonorable discharge.” I think anyone who follows military justice knows that this is a bunch of malarky. Truth is, he is being crucified for sins that would generally bring at best ten lashes to an enlisted person. Everybody knows it. Worst thing is he’s being prosecuted based solely on the word of a perjurer who accused him of nonconsensual sexual acts AFTER the investigation started on HER, as well as him, so this isn’t exactly the best case to show how just the military justice system is. Now, you got the Government dribbling out evidence of UCI, when this whole case has been about UCI from the get go. If the message is “Look at what we do to a combat-tested General on a bs case; think about what we do to actual rapists,” then I would concede that the message is sent.

This reminds me of a deleted scene from “A Few Good Men” after Jessup insults Kaffee’s white uniform:

JESSEP stands there and watches the LAWYERS as they turn and
leave the Officer’s Club.

JESSEP (continuing)
I hate casualties, Matthew. There
are casualties even in victory. A
Marine smothers a grenade and saves
his platoon, that Marine’s a hero.
The foundation of the unit, the fabric
of this base, the spirit of the Corps,
they are things worth fighting for.

Looks like the Defense in US V. Sinclair could get a new Convening Authority to consider the plea offer. COL Fischer would have dismissed the case and welcomed the opportunity to explain to Senator McCaskill why he did so.

The judge, Colonel James Pohl, voiced frustration that government emails written as long as two months ago and previously sought by the defense were only coming to light in the middle of the trial. He questioned why prosecutors should be allowed to call Anderson as a witness after they rejected such a request from Sinclair’s lawyers.
Anderson, who now commands international forces in Afghanistan, testified by phone from the Swedish embassy in Kabul.
He did not recall reading the letter from the accuser’s attorney, though an email he wrote in December suggested he had, and said neither its political contents nor anyone above him in the chain of command persuaded him to reject Sinclair’s plea offer.
“I asked one simple question, what does the victim want to do, and the answer was she wants to proceed to trial,” Anderson testified. “That’s what I based my decision on.”

One simple question–“What does the victim want to do?” So, he gets notified that the victim has lied under oath and that he should dismiss the Article 120 charges and allow Sinclair to plead guilty to the remaining offenses, and the only thing he is concerned with is “what does the victim want to do.” Well, at least we know that SWAN and Congress can swing the pendulum no farther…..or can they?

Well, this is sad. If the Huff Post is correctly reporting the Sinclair court’s ruling, the following language is very disconcerting:

On Monday, Pohl reviewed newly disclosed emails and said he found evidence that the decision to reject the plea deal was influenced by political considerations.

Under military code of justice, the decision was supposed to be decided solely based on evidence in the case — and not its broader political implications.

Okay, so, remind me again why there is any debate over some version of Gillibrand’s bill being unavoidably necessary? Don’t forget to consider the other glaring problem, to-wit, the following statement:

“I asked one simple question, what does the victim want to do, and the answer was she wants to proceed to trial,” Anderson testified. “That’s what I based my decision on.”

Okay. So, what this tells me that due to the current noxious, toxic environment that notwithstanding the evidence or the history of American justice reform since the nation’s founding, the commander is going to defer his objective judgment to the subjective wishes of the victim. Well, in defense of the commander’s decision, that is what Congress wants–they keep yelling that commander are and must remain in charge while making policies, rules and laws that effectively remove command discretion on whether to go to trial.

In the old days, deferring to the victim was called “retribution.” It certainly is not “justice.” It also is not “discipline,” for those who still think the commander-centric prosecution model carries any water in the 21st Century. Why will this Congressional encouraged “retribution” fail as a form of justice? History, as usual, has the answer:

As to the measure of human punishments, from what has been observed in the former articles we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences.

HENCE it will be evident, that what some have so highly extolled for its equity, the lex talionis or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases indeed it seems to be dictated by natural reason; as in case of conspiracies to do an injury, or false accusations of the innocent: to which we may add that law of the Jews and Egyptians, mentioned by Josephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice.

Blackstone’s Commentaries on the Laws of England: Public Wrongs, Book IV, Chapter 1, Pages 12 and 13.

I guess the one thing worse than a Congress full of lawyers is a Congress without enough lawyers. At least lawyers know something about rules, history and justice. And what it is not.

This is a case where the CG basically ceded decision-making to the victim on whether to go ahead or not. You don’t find that problematic SAG? If the only question is: What does the victim want, then why even have a CG? Or a 32 for that matter?

Taken to the logical extreme, SAG, why bother with a trial. If the victim’s subjective desires are all that matter, and since they are always telling the truth (which conflicts with the legal presumption that the accused is innocent until proven guilty–an archaric and unreasonable presumption if there ever was one) just let the victim decide the accused is guilty and determine the punishment. All the other stuff–those pesky rules, really deny them their right to retribution. Plus, once lawyers get involved, the victims wishes and desires are all forgotten in the quest for the truth. So, who needs all that mess or delay?

Stewie — This is a UCI motion. How is a victim who wants to go forward evidence of UCI?

RK — That is a logical absurdity. “Going forward” means referring the case to a court-martial (with all of its attendant due process — you know, the right to face an accuser, the right to cross-examine, the right to present evidence in defense, etc.).

SAG: concur. But Congress doesn’t believe in all that “attendant due process.” Either that, or the General doesn’t. Either way, this decision was not the product of command “leadership.” It was capitulation to the politically toxic envrionment we are in where due process is not a manifest concern right now.

I was a little concerned where the command influence was as well. Can UCI infect the decision to accept or reject an offer to plea? I always thought that evidence of a negotiation is inadmissible. And, it’s not like the accused has a due process right that has been affected. The case was referred prior to the alleged UCI. There is no evidence that the panel was tainted. BG Sinclair’s trial is as fair as it ever was, right?

On the other hand, Anderson states that his only concern was what the victim wanted. Why? Because the Pentagon wants to show Congress that it is tough on Sexual Assault prosecution as argued by the SVC. By what metric do we judge whether the military is tough on sexual assault? By ensuring that the victim’s desires are met, no matter what the lawyers are advising and no matter how much the victim is discredited. Haven’t we heard this for the past three years? I think this argument would have been one hell of a lot stronger if the Article 32 IO had recommended dismissal of the forcible sodomies.

I think that Airman 1st Class Brandon Wright will have a great UCI motion.

I had a First Sergeant ask me, “Fischer, you know what your job is?” I answered, “To play the piano, Top?” He replied, “No. You’re job is to make the Old Man look good.” That’s what all this is about. To make the Old Man look good. Because if this case is dismissed, the Old Man is going to get callled in front of Congress again, Senators McCaskill and Levin pretty much said so, and get drilled, have his promotion held up, etc. And let’s not forget about the ultimate Old Man, POTUS, who recently called for every personal committing sexual assault to be dishonorably discharged.

There is at least an appearance of UCI in all these facts, and Judge Pohl is not convinced beyond a reasonable doubt that all this did not influence Anderson’s decision regarding the plea deal. While I have never experienced Judge Pohl have a disdainful attitude towards me or any other defense counsel, I don’t think that Judge Pohl’s a defense hack. I certainly don’t think he has the reputation for entertaining defense motions alleging misconduct on Government actor’s parts, either. So, for him to rule the way he did says a lot to me about the Government’s position in this. And, who’s the next Commander up the food chain to make a decision regarding the plea offer?

I would hope the defense decides to take it to a new convening authority, then question him for UCI when he denies it.

Let me brave the slings and arrows with you and take up arms against a sea of troubles and say to our honorable defense colleagues: since when is it UCI that a victim (who feels herself aggrieved) wants to go to trial? Since when is it UCI that a commander, who subjectively considers allegations of sexual assault for which there is at least probable cause to proceed to trial, to want to take that case to a court-martial?

It appears to me that what the defense bar wants is a declaration that its UCI to send any case of sexual assault to a court-martial becuase there is significant political attention on the issue right now. If that were the law, it would litterally cripple our ability to maintain good order and discipline in the force. We would have to keep all cases “secret” so that no one evers knows about them because, after all, if there is political debate or rhetoric about a particular offense, then apparently a fair trial is impossible. Apparently the panels of officer and enlisted who swear an oath to consider only the facts and law presented them in this case is a lie, or at best, self-deluded.

Well, let me meet that absurd argument with another: WHY STOP THERE? If the argument is that Congressional disapproval of specific conduct results in UCI, then I have a whole long list of UCI for you: its called the PUNITIVE ARTICLES OF THE UCMJ. That just smacks of UCI doesn’t it?! Here Congress has declared its open hostility to a whole host of actions, and declared them to be CRIMINAL. What could possibly be more unfair to an accused! Congress has outlawed behavior he is alleged to have engaged in, how can he possibly now recieve a fair trial???

If that argument sounds absurd, I hope that you will all take a step back and see what you are complaining of here: that a convening authority refused to take a defense plea deal because he thought this case should go to trial. That’s what we’re talking about. That’s not UCI–that’s an independent exercise of command discretion.

While my defense colleagues are rightly concerned that apparent (NOT actual) UCI, COULD have a higher likelihood in a sexual assault case in light of the ongoing political debate over the future of sex assault prosecutons in the military, let me provide my colleagues with a few helpful hints for this and future cases. Here’s where it’s not UCI:

(1) the commander decides that in his command, he thinks sexual assault charges with the full support of the victim (even if she has a credibility issue on a collateral matter) should go forward to trial based upon the facts of the case;

(2) where those charges have been fully reivewed by an Article 32 investigation and he has recieved advice under RCM 406(b)(2) asserting that there is at least probable cause to believe that a sex assault was committed and that an accused committed it; and

(3) where the GCMCA testifies under oath that he referred the charges independently, in light of #1 and #2 above, and satisfying that little rule that tells us what the standard is for referring charges: RCM 601(d)(1): “If the convening authority finds or is advised by a judge advocate that there are reasonable grounds to believe that an offense triable by court-martial has been committed and that the accused committed it, and that the specification alleges an offense, THE CONVENING AUTHORITY MAY REFER IT.” RCM 601(d)(1) (emphasis added).

Stated another way, ANY policy agreement between the Convening Authority and Congress on sexual assault is a “CAPITULATION?” Is it seriously your contention that a Convening Authority should not be allowed to refer a sex assault charge to trial becaue he agrees with Congress that sexual assault is a crime? Because he agrees that it is serious? Because he wants to enforce good order and discipline by holding even decorated senior leaders accountable for alleged misconduct? It’s UCI because he doesn’t want to give a General Officer who admits to grossly unprofessional conduct with multiple female subordiantes a “golden parachute?”

I can hear your retorts: “No AF JAG–you’re missing it–it MUST be UCI because this case sucks. So any convening authority who refuses a PTA is crazy. It must be UCI!” Am I right? Is that your argument? Because it appears that those who would find UCI in this case would do so based upon this alleged lie by the alleged victim dealing with a collateral issue (record of cell phone communications with the accused). That is, because an alleged victim may have lied about her cell phone communications with the accused an commander subsequently refusing a PTA offer must be operating under UCI?

WHAT? Has anyone looked up the definition for “non sequitir” lately–because I think this qualifies. UCI deals with unlawful influence brought by command authorities (not victims) upon a commander to compel a particular case disposition. Since when is the exercise of conscience UCI? Your argument is, I don’t think the convening authority should be able to refer a sex assault case because I think the defense will win at trial. Well, I checked RCM 601(d)(1) very carefully, and that’s NOT the standard.

Look, I’m not saying that defense doesn’t have a beef with possible lies under oath by the victim on collateral issues–but let’s not mistake those with some sort of “smoking gun” on UCI. While that is certainly AMPLE FODDER for a closing argument at trial that the members could find reasonable doubt based upon credibility concerns, to equate the possibility of reaosnable doubt at trial with a bar on referring charges to trial is to turn the system directly on its head. Please, everyone, read RCM 601 and tell me how this commander who testified under oath that he made an independent decision to refer this after considering the evidence and the victim’s inputs is NOT PERMITTED to refer these charges.

SAG/AFJ: No matter what rules you cite or arguments you make, the fact of the matter is that it appears that the nisi prius court determined, from the plain words of the following language:

“I asked one simple question, what does the victim want to do, and the answer was she wants to proceed to trial,” Anderson testified. “That’s what I based my decision on.” (emphasis added).

Based upon the emphasized language, the CG certainly appears to state that he didn’t weigh all the required factors and went forward based only (or primarily) upon the victims wishes. It is hard to dispute your argument that a victim cannot exert UCI alone since she is not part of the chain of command.

However, if the reason for the CGs deference to the victim’s wishes was the political pressure from Congress exerted through the victim, then the court’s ruling makes perfect sense–especially in this toxic climate. Arguably, congress has undermined the administration of justice by pressuring a commander to value one factor over all others despite the law to do otherwise. In fact, if I were on the Sinclair team, and assuming that they haven’t already done this, I would consider filing motions for the court to take judicial notice of Congress’s conduct vis a vis AF General Franklin (and others) and ask it to infer that the same pressure is impliedly being exerted here, through the victim. It might not work at all, but it is worth a try if it can be done in good faith.

And the courts have already rejected the argument that civilian politicians are not subject to the UCMJ precisely because they recognize that the text of the UCI prohibition must, of necessity, include the political forces that exert tremendous influence over those subject to the code, although the plain language of the statute dictates otherwise.

So, perhaps the CG should have chosen his words better, but it appears the words he chose have come back to haunt him.

Facts not in evidence. The CDR, apparently, said, the only thing that matters is what the victim wants. That does not mean that the CG believes there is probable cause, in fact, it means the opposite. It means REGARDLESS of whether or not there is probable cause, or ANY other factor, the ONLY thing he considers is what the victim wants.

It’s not about whether this case “sucks” it’s about a complete abdication of the CG’s role to the whims of the alleged victim. Now, WHY did the CG abdicate his role? What ahem “influence” caused that abdication? This would be a different story if the desires of the victim were one of several factors, but they appear to be the only factor, and that is something I don’t care what side of the aisle you are on, it’s not justice or due process.

No, not “any CA who refuses a PTA is insane” a CA who says the ONLY thing that matters is what the alleged victim wants is “insane.” It’s, quite frankly, a little annoying that some are attempting to shade this in a matter that’s a serious strawman.

And the courts have already rejected the argument that civilian politicians are not subject to the UCMJ precisely because they recognize that the text of the UCI prohibition must, of necessity, include the political forces that exert tremendous influence over those subject to the code, although the plain language of the statute dictates otherwise.

Should have read as follows:

And the courts have already rejected the argument that BECAUSE civilian politicians are not subject to the UCMJ, they cannot exert UCI (the Marine Corps cases involving the President). The did so ostensibly because they recognize that the text of the UCI prohibition must, of necessity, include the political forces that exert tremendous influence over those subject to the code, although the plain language of the statute dictates otherwise.

stewie and RKinkaid3: Thank you for pointing out the facts of the issue to AF JAG. I guess Article 32 reports and pre-trial advice should now just have a check box for whether the complainant wants the case referred. If yes, then the analysis of the facts can just stop right there.
k fischer: I am anxiously awaiting the UCI motion (and the trial itself) on Wright. That case is the “this far and no further” moment for justice in the Air Force.

The JAGs job is, in part, to keep your Commander off of Congress’ radar. Often, legal advice to Commanders sounds like “this is legal, but it doesn’t pass the CNN test.”
With that said, the word of the victim to the GCMCA does not UCI make, if those are the only facts we are considering. But, we aren’t considering it in a vacuum.
Let’s say you have an alleged victim with a story that is barely credible, and she herself has been caught in lies. Let’s take it a step further to find out that she has a motive to lie. Maybe she’s a jilted lover, or maybe rumors got back to her boyfriend, whatever. The case gets a PC opine, charges are preferred, and the 32 IO opines reasonable grounds. But, more lies keep coming out, and deciding that it’s better not to put a loser in front of a panel that has already stopped trusting you, the TC convinces the CG to take a Chapter 10. The alleged victim doesn’t like it and files a congressional, and before you know it, the GCMCA is radioactive and is not getting their next star.Again, some of this hypothetical is hyperbole, but the precedent is there. Who wants to end up like LTG Helms or LTG Franklin? Congress has said, without actually saying, that if you sit in the GCMCA chair, and you don’t drop the hammer, you are going to answer for it. So, it’s not UCI per se, but if a GCMCA is afraid of making the hard choice of NOT taking something to GCM because they are afraid of Congress, how do we not have UCI? Congress’ displeasure with the military’s handling of 120 cases is influence enough. It’s turned into a “send every allegation to GCM and let the panel sort it out kind of environment.”

Part of the problem is that some advocates and members of Congress buy into the 2% false accusal rate fallacy. If you believe 98% of all accusations are true, then “send every allegation to GCM and let the panel sort it out” sounds like the right thing to do.

If you believe this quote, then you’ve made all this discussion moot – if a commander is concerned about Congress, he or she is not free from influence and influencing; if the JAG’s job is to keep that in check, then the picture is clear, that justice is not the aim for commanders or JAGs. This quote shows why it is the personnel system that is the root of all these problems.

The JAGs job is, in part, to keep your Commander off of Congress’ radar

I’m not convinced that making a decision on referral, or a discharge in lieu decision, or any other case disposition decision based purely on the wishes of the victim is necessarily UCI. I agree some of the Congressional rhetoric, referenced by the SVC in her letter, advocates such decision making, more or less. But, that doesn’t necessarily mean the CA made decisions because of that rhetoric, or that an outside observer would believe he was swayed by the rhetoric. It’s entirely possible that’s just his own personal opinion on how the decision ought to be made. Of course, I have concerns that such abdication of prosecutorial discretion to a party of the dispute is a fundamental due process issue, but it’s not necessarily UCI.

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